Instruction 451 [Affirmative Defense—Contractual Assumption of Risk]:
The defendant claims that the plaintiff may not recover any damages because she agreed before the incident that she would not hold the defendant responsible for any damages.
If the defendant proves that there was such an agreement and that it applies to the plaintiff’s claim, then the defendant is not responsible for the plaintiff’s harm[, unless you find that the defendant was grossly negligent or intentionally harmed the plaintiff.
[If you find that the defendant was grossly negligent or intentionally harmed the plaintiff, then the agreement does not apply. You must then determine whether he is responsible for the plaintiff’s harm based on the other instructions that I have given you.]
Instruction 452 [Sudden Emergency]:
The plaintiff/the defendant claims that she/he was not negligent because she/he acted with reasonable care in an emergency situation. The plaintiff/the defendant was not negligent if she/he proves all of the following:
1. That there was a sudden and unexpected emergency situation in which someone was in actual or apparent danger of immediate injury;
2. That the plaintiff/the defendant did not cause the emergency; and
3. That the plaintiff/the defendant acted as a reasonably careful person would have acted in similar circumstances, even if it appears later that a different course of action would have been safer.
Instruction 453 [Injury Incurred in Course of Rescue]:
The plaintiff claims that she was not at fault for her own injury because she was attempting to rescue a person who was in danger as a result of the defendant’s negligence.
To establish this claim, the plaintiff must prove all of the following:
1. That there was, or a reasonable person would have perceived that there was, an emergency situation in which someone was in actual or apparent danger of immediate injury;
2. That the emergency/a danger to the plaintiff was created by the defendant’s negligence; and
3. That the plaintiff was harmed while attempting to rescue the person in danger.
Instruction 454 [Affirmative Defense—Statute of Limitations]:
The defendant contends that the plaintiff’s lawsuit was not filed within the time set by law. To succeed on this defense, the defendant must prove that the plaintiff’s claimed harm occurred before applicable statute of limitation.
Instruction 456 [Defendant Estopped From Asserting Statute of Limitations Defense]:
The plaintiff claims that even if her lawsuit was not filed on time, she may still proceed because the defendant did or said something that caused the plaintiff to delay filing the lawsuit. In order to establish the right to proceed, the plaintiff must prove all of the following:
1. That the defendant said or did something that caused the plaintiff to believe that it would not be necessary to file a lawsuit;
2. That the plaintiff relied on the defendant’s conduct and therefore did not file the lawsuit within the time otherwise required;
3. That a reasonable person in the plaintiff’s position would have relied on the defendant’s conduct; and
[4. That after the limitation period had expired, the defendant’s representations by words or conduct proved to not be true; and]
5. That the plaintiff proceeded diligently to file suit once she discovered the need to proceed.
It is not necessary that the defendant have acted in bad faith or intended to mislead the plaintiff.
Instruction 457 [Statute of Limitations—Equitable Tolling—Other Prior Proceeding]:
The plaintiff claims that even if her lawsuit was not filed by the applicable statute of limitations date, she may still proceed because the deadline for filing the lawsuit was extended by the time during which [specify prior proceeding that qualifies as the tolling event, e.g., she was seeking workers’ compensation benefits]. In order to establish the right to proceed, the plaintiff must prove all of the following:
1. That the defendant received timely notice that the plaintiff was [e.g., seeking workers’ compensation] instead of filing a lawsuit;
2. That the facts of the two claims were so similar that an investigation of the [e.g., workers’ compensation claim] gave or would have given the defendant the information needed to defend the lawsuit; and
3. That the plaintiff was acting reasonably and in good faith by [e.g., seeking workers’ compensation].
For the defendant to have received timely notice, the plaintiff must have filed the [e.g., workers’ compensation claim] by the applicable statute of limitations date and the [e.g., claim] notified the defendant of the need to begin investigating the facts that form the basis for the lawsuit.
In considering whether the plaintiff acted reasonably and in good faith, you may consider the amount of time after the [e.g., workers’ compensation claim] was resolved or abandoned before she filed the lawsuit.
Instruction 460 [Strict Liability for Ultrahazardous Activities—Essential Factual Elements]:
The plaintiff claims that the defendant was engaged in an ultrahazardous activity that caused her to be harmed and that the defendant is responsible for that harm.
People who engage in ultrahazardous activities are responsible for the harm these activities cause others, regardless of how carefully they carry out these activities. [Insert ultrahazardous activity] is an ultrahazardous activity.
To establish her claim, the plaintiff must prove all of the following:
1. That the defendant was engaged in [insert ultrahazardous activity];
2. That the plaintiff was harmed;
3. That the plaintiff’s harm was the kind of harm that would be anticipated as a result of the risk created by [insert ultrahazardous activity]; and
4. That the defendant’s [insert ultrahazardous activity] was a substantial factor in causing the plaintiff’s harm.
Instruction 461 [Strict Liability for Injury Caused by Wild Animal—Essential Factual Elements]:
The plaintiff claims that the defendant’s wild animal harmed her and that the defendant is responsible for that harm.
People who own, keep, or control wild animals are responsible for the harm that these animals cause to others, no matter how carefully they guard or restrain their animals.
To establish her claim, the plaintiff must prove all of the following:
1. That the defendant owned, kept, or controlled a wild animal;
2. That the plaintiff was harmed; and
3. That the defendant’s wild animal was a substantial factor in causing the plaintiff’s harm.
Instruction 462 [Strict Liability for Injury Caused by Domestic Animal With Dangerous Propensities—Essential Factual Elements]:
The plaintiff claims that the defendant’s domestic animal with dangerous propensities harmed her and that the defendant is responsible for that harm.
People who own, keep, or control animals with unusually dangerous natures or tendencies can be held responsible for the harm that their animals cause to others, no matter how carefully they guard or restrain their animals.
To establish her claim, the plaintiff must prove all of the following:
1. That the defendant owned, kept, or controlled a domestic animal;
2. That the animal had an unusually dangerous nature or tendency;
3. That before the plaintiff was injured, the defendant knew or should have known that the animal had this nature or tendency;
4. That the plaintiff was harmed; and
5. That the animal’s unusually dangerous nature or tendency was a substantial factor in causing the plaintiff’s harm.
Instruction 463 [Dog Bite Statute (Civ. Code, § 3342)—Essential Factual Elements]:
The plaintiff claims that the defendant’s dog bit her and that the defendant is responsible for that harm.
People who own dogs can be held responsible for the harm from a dog bite, no matter how carefully they guard or restrain their dogs.
To establish her claim, the plaintiff must prove all of the following:
1. That the defendant owned a dog;
2. That the dog bit the plaintiff while she was in a public place or lawfully on private property;
3. That the plaintiff was harmed; and
4. That the defendant’s dog was a substantial factor in causing the plaintiff’s harm.
[The plaintiff was lawfully on private property of the owner if she was performing any duty required by law or was on the property at the invitation, express or implied, of the owner.]
Instruction 470 [Primary Assumption of Risk—Exception to Nonliability—Coparticipant in Sport or Other Recreational Activity]:
The plaintiff claims she was harmed while participating in [specify sport or other recreational activity, e.g., touch football] and that the defendant is responsible for that harm. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant either intentionally injured the plaintiff or acted so recklessly that his conduct was entirely outside the range of ordinary activity involved in [e.g., touch football];
2. That the plaintiff was harmed; and
3. That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
Conduct is entirely outside the range of ordinary activity involved in [e.g., touch football] if that conduct (1) increased the risks to the plaintiff over and above those inherent in [e.g., touch football], and (2) it can be prohibited without discouraging vigorous participation or otherwise fundamentally changing the [sport/activity].
The defendant is not responsible for an injury resulting from conduct that was merely accidental, careless, or negligent.
Instruction 471 [Primary Assumption of Risk—Exception to Nonliability—Instructors, Trainers, or Coaches]:
The plaintiff claims she was harmed by the defendant’s [coaching/training/instruction]. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant was the plaintiff’s [coach/trainer/instructor];
2. [That the defendant intended to cause the plaintiff injury or acted recklessly in that her conduct was entirely outside the range of ordinary activity involved in teaching or coaching [sport or other recreational activity, e.g., horseback riding] in which the plaintiff was participating;]
[or]
[That the defendant unreasonably increased the risks to the plaintiff over and above those inherent in [e.g., horseback riding];]
3. That the plaintiff was harmed; and
4. That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
Instruction 472 [Primary Assumption of Risk—Exception to Nonliability—Facilities Owners and Operators and Event Sponsors]:
The plaintiff claims she was harmed while [participating in/watching] [sport or other recreational activity e.g., snowboarding] at the defendant’s [specify facility or event where plaintiff was injured, e.g., ski resort]. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant was the [owner/operator/sponsor/other] of [e.g., a ski resort];
2. [That the defendant unreasonably increased the risks to the plaintiff over and above those inherent in [e.g., snowboarding];]
[or]
[That the defendant unreasonably failed to minimize a risk that is not inherent in [e.g., snowboarding] and unreasonably exposed the plaintiff to an increased risk of harm;]
3. That the plaintiff was harmed; and
4. That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
Instruction 473 [Primary Assumption of Risk—Exception to Nonliability—Occupation Involving Inherent Risk]:
The plaintiff claims that she was harmed by the defendant while the plaintiff was performing her job duties as [specify, e.g., a firefighter]. The defendant is not liable if the plaintiff’s injury arose from a risk inherent in the occupation of [e.g., firefighter]. However, the plaintiff may recover if she proves all of the following:
[1. That the defendant unreasonably increased the risks to the plaintiff over and above those inherent in [e.g., firefighting];]
[or]
[1. That the defendant [misrepresented to/failed to warn] the plaintiff [of] a dangerous condition that the plaintiff could not have known about as part of her job duties;]
[or]
[1. That the cause of the plaintiff’s injury was not related to the inherent risk;]
2. That the plaintiff was harmed; and
3. That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
[Judicial Council Of California Civil Jury Instructions]
